The Only Thing the Broadcasting Treaty Is Good For Is Crushing Innovation

For those of us following the continuing saga of the unnecessary and harmful WIPO Broadcasting Treaty, its latest manifestation is starting to have the feel of a tired movie franchise. Everyfewyears, as soon as Hollywood thinks it can squeeze a few more dollars out of a new installment, the same bad idea gets rehashed with the same cast of characters, and still no substance.

But unlike a bad sequel, we can't just ignore each new round of negotiations: the interests pushing for the treaty are counting on a lapse of vigilance from the public in order to push the bad policy through.

So what is the Broadcasting Treaty, anyway? In short, the idea is to create a new bundle of copyright-like veto points for broadcasters. In official descriptions, those new broadcaster powers are referred to as "rights," but that language clouds the fact that the treaty is really about creating new restrictions.

Let's say a broadcaster shows a public domain movie on their network. Currently, nobody can restrict your rights to use that film however you like — whether that's recording it to watch later, making a remix with it, or even broadcasting it over your own network or on your own website. That is, after all, the point of the public domain, and it's a very good thing.

A Broadcasting Treaty, though, would give broadcasters the power to restrict your use of those works — even if they have no copyright interest in the works at all.

The broadcasters and other representatives of the entertainment industry like that scheme because it gives them more opportunities to control the kinds of audiovisual content they broadcast. If they've got any other reason, one that isn't just about serving their own interests at the expense of the public, they've been tight-lipped about it.

KEI, the only consumer interest group that's even been present at the latest round of discussions, has put together an excellent — if frustrating — guide to the kinds of empirical policy questions that are not coming up in the reality-free zone in which the negotiations are taking place:

It has been extremely difficult to get broadcaster treaty supporters to explain why a treaty is needed, in a world where content is already protected under several copyright and related rights treaties. [...] We don't know if the rationale is related to piracy or to create a set of new economic rights for people who broadcast (and do not create) content. And, we don't understand why copyright does not already provide mechanisms to address piracy, when it occurs.

There are alleged gaps in copyright protection for works, but other than vague assertions that sporting events are not protected in some countries (which ones?) and some poorly articulated claims that broadcast owners don't have standing to litigate piracy, the "gaps" argument is hard to follow -- even though people are genuinely open minded, and would consider fixes to problems if they could be explained.

And while the need for a new broadcast treaty may be hard to pin down, the harm it could cause is not. Just this month, a U.S. appeals court has affirmed that an innovative new web television service called Aereo is not infringing copyright in its operations, despite allegations in lawsuits from major American broadcasters. This decision was a victory for the company, and also for consumers who benefit from the product. As we wrote earlier this month:

The decision is a positive step because it repudiates the "permission culture" worldview of the TV networks and their allies. The networks, joined by ASCAP, sports leagues, and a former Register of Copyrights, argued essentially that anyone who profits from copyrighted works must be made to pay, and that if a company like Aereo builds a business that copyright law doesn't touch, the court should try to rewrite the law. Courts can't do that, of course. Copyright law has never regulated all possible uses of creative works. Many uses are free for everyone, without payment or permission, and private, personal transmission of free TV is one of them.

In other words, the broadcasters couldn't convince the courts to shut Aereo under copyright law. From a consumer perspective, that's obviously a good thing — early reviews are extremely positive, and the competition may shake up a category that has long been stagnant. But under the proposed Broadcasting Treaty, they could shut down that innovative service after all.

If this year's Broadcasting Treaty proposal is just a poorly conceived sequel, it promises to be the feel-bad hit of the summer. Efforts like these, pushed forward without evidence in a forum with little accountability, need to be stopped before they make it into the books internationally and laundered back into bad domestic policy.

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